The investigative roles of ASIC

Subject: Criminal Law

Topic: The Case of Adele Vs The state in the death of Victor

Introduction

This
case involves the trial of Adele, an Australian woman charged with the murder of
her husband Victor. In brief, Adele has shot and injured Victor, her husband of
12 years. Prior to the shooting, Victor had turned to be an abusive husband,
frequently assaulting and even causing physical injury on Adele. After the
shooting, Adele made an emergency call to the local police and ambulance, where
the husband was immediately taken to hospital. However, a road accident
involving other vehicles delayed his transport to the hospital and the medical
team at the hospital administered an anaesthetic drug, but he was allergic to
it. Within few hours, Victor was pronounced dead. The legal question in this
case is whether to charge Adele with murder or manslaughter. On her defence,
this paper will argue that Adele’s intention was not to kill Victor, but she
shot him on her self-defence because it was evidence Victor was a threat. To
drive the point, the paper will develop a critical analysis of “murder”
defensive homicide and self-defence in order to show that the road delay and
administration of the anaesthesia on an allergic patient must have been the
major contributors of Victor’s death rather than the action of Adele.

Australian Criminal law:
Homicide (Murder) versus self-defence

The
Australian criminal law provides the Jury with the option to decide whether an
action accounts to murder or self defence. First, it is important to consider
the most likely intention of the offender. For instance, the question “what was
the intention of the accused in committing the felony?” Was the act accidental
or intentional? (Brown et al 2006). In the case of Adele, the court
ought to determine that she shot Victor, her husband of 12 years, in response to
his “frequent” abuse. It is also clear that she had warned Victor not to come
closer to him. In fact, the bullet that hit Victor was the second Adele had to
shoot after the first shot failed to scare him off. Secondly, it is clear that
Adele called the ambulance after realising that she had actually shot her
husband. According to the Australian law, an action can be considered a case of
murder when the offender attempted to conceal his or her action after the death
of the victim. Moreover, it is clear that Adele had not intended or though of
committing the crime until she was provoked. In case law Lord Morris in Palmer v
R [1971] AC 814, it was determined that a reasonable force is used when the
victim of the murder was expected to weight to a nicety the particular measure
of his or her necessary defensive force. In this case, it is clear that Adele
was the actual would be victim of assault until she acted in the only we she
thought would have cleared the danger.

The
second aspect that the court needs to determine is the fact that murder did not
happen because Victor’s death was not due to the shooting incidence. According
to the medical reports, three factors led to his death- the shooting, delay in
medical assistance and the administration of the wrong anaesthesia. It is worth
looking at the actual definition of murder according to the Australian criminal
law. In this case, Murder is considered as the Crimes Act 1990 states that
murder accounts to the situation in which the act of the offender (accused) or
thing by him or her omitted to be done causing the ultimate demise was done or
omitted due to reckless indifference to the life of the victim or with the
intent to inflict bodily harm or kill the victim. In this case, it is evident
that Adele’s action was not meant to kill, although it caused grievous bodily
harm to Victor. It is worth noting that the ultimate death of the victim did not
result from the effect of the bodily injuries obtained in the act. In fact, the
medical reports indicate that the victim could have survived the injuries if
there was no delay and if the right anaesthesia was administered.

The aspect of self defence

In the case at common law of Zecevic v DPP, the High Court of Australia set out the requirements for an action to be
considered an act of self-defence rather than murder. According to the court,
the question to be considered is whether the accused had reasonably believed
upon reasonable grounds that the action was carried out with necessity to defend
his or her life. If the accused had reasonable belief that the action would
necessarily provide protection of his body or life due to the existence of
reasonable grounds to take the action, then it should not be considered a case
of murder but self-defence. If the jury is left in reasonable doubt about the
question above, then the case presented in a court of law within the area of
jurisdiction must result into an acquittal of the accused. In the case of Adele
Vs the state, there is enough evidence that Victor had been assaulting and
possibly instilling physical harm on Adele. In fact, evidence indicate that the
rate of assault had become frequent, which made it necessary for Adele to find a
better way of defending her life. According to the requirement given in the case
law
of Zecevic v DPP,
it is evident that Adele believed upon reasonable grounds that it was necessary
for her to take an action in defending her life. Secondly, it is clear that her
life was under threat as shown by Victor’s act of approaching her with the
intention to cause harm.

Thirdly, in Commonwealth Criminal Code Section 10.4(2), it is stated that
an act is considered self defence if the offender or the accused carried out the
conduct in the belief that he or she could have defended his or her life from an
actual threat. In the case of Adele, there is substantial evidence that the only
best way she could have defended herself was threatening Victor. In act, Adele
knew, from experience with Victor, that he would not be scared by any other
means apart from the use of the gun. We can prove this by referring to the
situation in which he received the gunshot injury. Prior to the shooting, Adele
had made a decision to hide from the abusive Victor in their room, but once he
made an access to the room, it was not possible for her to run or withdraw,
given that Victor was near the entrance. Therefore, the duty to retreat, as
provided in the commonwealth case law (Smith and Hogan, Criminal Law,
1996, p264), did not apply. According to the court in the case law R v Bird
[1985] 1 WLR 816, it is necessary to note that Victor was the threat, and had
intentions to prevent Adele from retreating before causing bodily harm on her.

Conclusion

From the case laws and statutory acts above, it is evidence that Victor’s
intention was to cause harm. Secondly, it is evidence that by shooting Victor,
Adele intended to scare him off in self-defence. Thirdly, the fact that she
called the ambulance provides evidence that she did not intend to kill him.
Finally, the cause of Victor’s death is attributed to two other factors apart
from the gunshot injuries- delay in medical attention and administration of the
wrong anaesthesia.

Crimes Act 1900 §§ 27-30

Crimes Act 1900 § 23

R v Bird [1985] 1 WLR 816,

Smith and Hogan, Criminal Law, 1996, p264),

Brown, D et al, 2006, Brown, Farrier,
Neal and Weisbrot’s Criminal Laws: Material and Commentary on Criminal Law and
Process in New South Wales 627